Court: Cops can't stop drivers based on the color of their cars [FL]

Yahoo! Autos ^ | 7/9/14 | Justin Hyde

[Slings and Arrows]

"Probable cause" has long been one of those terms that made the jump from legal jargon to household term, especially with regards to drivers who get pulled over. The struggle over what that allows on American roads — and what it doesn't — took a new turn last week with a Florida ruling that threw out a conviction stemming from a police officer who found something wrong with the color of a car.

In 2010, a deputy in Florida's Escambia County saw one Kendrick Van Teamer drive by in a bright green Chevrolet. The deputy ran his plates, and found the registration matched a blue Chevrolet. There were no warrants out for Teamer, no reports of stolen vehicles and no pending crimes that involved either a blue or green Chevy. Teamer also wasn't violating any traffic laws.

But the deputy pulled Teamer over anyway, simply because of the mismatch of the car's color. Teamer said the car had been recently painted, which was true. It also contained small amounts of cocaine, marijuana and $1,100 in cash. Teamer was charged with drug trafficking and possession, convicted and sentenced to six years in prison.

Teamer appealed, and last week as noted by The Newspaper, the Florida Supreme Court ordered him freed on a 5-2 decision, upholding a lower appeals court ruling that the deputy was wrong to stop Teamer simply becuase the color of his car didn't match its registration. The court noted that in numerous U.S. Supreme Court rulings, justices have found police can't pull someone over for everday behavior that's not linked to a crime, saying Teamer's stop was not different from those triggered by the race of the driver:

[Beagle8U]

I don’t think is was run because of the color, just randomly run and came back as not matching.

[ImNotLying]

If I may, I would like to respond to your post. If this police officer had noticed an equipment fault such as the one you mentioned or a tail light out, he could legally stop the car and give a warning or ticket for that violation. It during the stop he saw or smelled what he thought to be drugs, then he would have legal reason to search and seize. In this particular case, he had no legal reason in the first place to stop the car. Therefore, his accessing the NCIC data base whereby he found the car showed a different color was not authorized and found so by the court.

[NorthMountain]

If random plate checks are illegal then about every police dept in America is guilty.

Well, there you go. Just about every police department in America is guilty. Maybe every police department in America should learn to respect the rights of the people (who are, after all, their employers and masters). Maybe every police department in America should quit trying to find ways to weasel around the limits on their power specified in the Constitution. What say you?

[Beagle8U]

If the plate doesn’t match the vehicle description it would be reasonable to assume that it was an improper plate.

[Beagle8U]

I wasn’t debating the issue based on a drug dealer going free, I just don’t understand how they could have ruled the stop unjustified based on the facts of the case.

The plate did come back as non matching.

[MortMan]

Your interpretation of the situation says that a paint color mismatch (the models being the same between registration and vehicle) is probable cause for investigating a possible stolen plate. The court determined that a color mismatch, where the vehicle make and model match is NOT probable cause.

The issue is this: What causes are more common for a registration/vehicle color mismatch (without make/model differences)?

1. Stolen plate
2. Clerical error
3. Painting the car

These 3 are off the top of my head. There was a poster above who cited that the factory named his car’s color “green”, the state registered it as “green”, and yet it mostly looks silver.

The court stated specifically that the color/registration mismatch, by itself, is insufficient to make a stop. That is because there are too many ways for the registration to be wrong, or for the color to have been modified, neither of which are infractions on part of the owner/driver.

If the make/model and color are wrong - then that is probable cause. More than one item incorrect, including the basic information that forms the substance of the registration.

Needless to say, I disagree with your point of view. You are essentially asserting the exact opposite of the finding, and doing so in an area that is rife with legal reasons for a mismatch.

[ImNotLying]

Because a police officer can’t just pull up behind you at a traffic light and think, I want to see who this ugly guy is and where he lives so I will run his plate thru NCIC. Do police officers do this? YES. Is it legal, NO. If you knew they had done this you would have a legitimate reason to take them to court for unauthorized access. That doesn’t happen often but I know of two specific cases where it did happen. If in your example case above, the officer had found you had a different tag on your car BUT he told the court he access NCIC because you were UGLY, the court would have thrown it out because UGLY is not a legitimate reason to access NCIC. Does that help clarify what I am saying?

[tacticalogic]

If the plate doesn’t match the vehicle description it would be reasonable to assume that it was an improper plate.

That means it's unreasonable to think a vehicle might have been painted a different color.

[Beagle8U]

“Needless to say, I disagree with your point of view. You are essentially asserting the exact opposite of the finding, and doing so in an area that is rife with legal reasons for a mismatch.”

If color mismatch isn’t reason for a stop...

A perp stealing a car would learn pretty quick to switch plates with another of that model and not need to worry about being stopped.

As I mentioned earlier, hardly anyone would notice if their plate was switched.

I understand your well reasoned argument, but I think it would remove the tools necessary for cops to do their job.

[KEVLAR]

Non matching plate?

I can only see that in the case of data points that cannot be changed easily by the owner.

One cannot change the make or model of their car. They can however run down to the store and grab some paint and change the color.

With all that our law enforcement has become, SWAT, no-knock, surveillance, parallel construction, manufactured cause, outright lawless behavior, etc. I no longer trust that they are acting in the public interest, but rather their own. They have lost the benefit of doubt in the view of much of the public.

[nathanbedford]

You make a good point and one which I have commented on several times. If we really wanted to root out and punish the guilty we would do away with search and seizures restrictions on law enforcement and even indulge in waterboarding. I bet crime would drop way down, but is that the kind of society we want? One might apply those considerations to the war on drugs.

So you put your finger on an important issue when you speak of "alpha error rather than beta error." What values do we want to advance even when they compete against the efficient administration of criminal justice? Some time ago I wrote a rather lengthy reply (no surprise there) which ponders this question in the context of the Supreme Court case (Maryland vs. King, 2013) permitting the taking of DNA incident to an arrest.

Perhaps you would be interested in that reply:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It is always worth the time to look at the text. The first thing I read is that I have a right to be secure in my person. Thus the fourth amendment is there to protect my "right." The right extends to my "person." The right extends to a prohibition against "unreasonable searches and seizures." So, the amendment protects my person against a search which is unreasonable and even says that that right shall not be "violated."

I extrapolate further that the amendment does not undertake to protect me against reasonable searches and seizures, although it does not say so. Nor does the amendment define what is reasonable or what is unreasonable. That is left to the legal process as the founding fathers understood that from their inheritance of the Anglo-American system of common law.

One could read the amendment to prohibit all searches done without a warrant or one could read the amendment, as the courts have done, to permit warrantless searches under some circumstances such as searches conducted pursuant to a valid arrest.

In the case at point we indisputably have a valid arrest. In fact, courts have held that searches conducted after valid arrests are permissible. The minority in its dissenting opinion, written by Justice Scalia, finds the search to be unreasonable. Could the deficiency which concerns Justice Scalia been cured if the police officers had gone to a magistrate and secured a warrant? This question is now mere academic speculation because the majority opinion permits these DNA searches conducted subsequent to a "serious" arrest and permits the DNA evidence to be used to prove an unrelated crime. However, to focus our thinking, we should consider whether the values at stake and which are considered to have been "violated" by the minority would have been cured if the officers had secured a warrant permitting them to swab the defendant's mouth for DNA. That raises the question, what would the officers have alleged to a magistrate which would justify him signing a warrant authorizing such a DNA swab? That question, while academic now, focuses our thinking as conservatives upon the meaning of the fourth amendment and the values which it seeks to protect.

There are Three Harridans who joined Justice Scalia in dissent but their eagerness to protect the underlying values of the fourth amendment is suspect at best. We should not forget that a fourth amendment case is a privacy case and these bloodthirsty abortionists cannot be presumed to be motivated by any other consideration than to protect the right to kill the unborn. As a matter of academic honesty, I dismiss their participation in this case.

Justice Scalia, of course, operates on a higher level. On the other side we have at least two reasonable justices, Thomas and Alito. From a conservative point of view, then, this is not an obvious case and this case, as with any other case, should not be found either persuasive or repugnant to conservatives merely by counting judicial noses. Nor should we find ourselves committing the same sin which I allege motivates Ginsburg, Sotomayor and Kagan.

Likewise, the fourth amendment is not there to provide lawyers with a full employment plan who can profit by endlessly litigating search and seizure cases where the game is to win a technical acquittal on behalf of a defendant who is by definition guilty because he was found to be in possession of the thing which proves his guilt. The purpose of the fourth amendment is not to reward with a get out of jail free card anymore than it is to provide a rationalization for abortion. This begs the question, can a search be deemed reasonable because it will increase the likelihood of apprehending criminals and thereby reduce crime? Can it be justified by arguing that DNA will also vindicate the innocent? What are the real values of the fourth amendment which we should seek to further?

The language quoted and parsed above establishes that the purpose is not the inviability of our right to privacy but to provide protection against unreasonable intrusions of our privacy. It is in this context that we find Scalia on the one hand and Thomas and Alito on the other hand thinking at cross purposes.

The majority opinion, written by Kennedy, says that the reasonableness of the search which occurs here without a warrant but after valid arrest is "reasonable" because the physical intrusion of the Q-tip into the mouth to take the swab is minimal. There is no puncture, no pain, no threat of injury. Therefore, the search is reasonable. I find it strange that the majority says that this innocuous intrusion is not to be countenanced except when conducted against people who have been arrested for a "serious" crime. Remember, the DNA obtained by this search is not to be used for the crime for which the defendant has been arrested but to be placed in a databank which can be digitally searched and the DNA evidence extracted to be used to convict the defendant of another crime . Why does the seriousness of the arrest make this valid? Why would DNA evidence collected from the perpetrator of a minor infraction having equal constitutional value? Why does the allegation of a serious crime change the degree of protection owed by the fourth amendment to the defendant?

It is at this point that the thinking at cross purposes of those holding Scalia's view enters the picture. I cannot believe the Scalia is concerned about the physical intrusion of a Q-tip, clearly he is concerned about the creation of a databank which in effect exists in a cyber cloud which can rain upon any one of us at the whim of the government which controls the data. Once the DNA results are logged and placed into this cloud, supervision over the data by the legislative and judicial branches seems at best to be ill-defined if it exists at all. One of the purposes of the fourth amendment is to protect the citizen by subjecting searches and seizures of the executive branch to scrutiny by the judicial branch, a classic separation of powers. Even if the DNA is never used for criminal purpose, it might be used for any number of nefarious purposes and, in any event, privacy is compromised and it is compromised in secret, in a digital cloud wholly beyond judicial review.

Nor is there any assurance that a seizure which might have been considered reasonable because it provides evidence which might be used in the realm of the criminal law will not be exploited by the government for other purposes. The world is turning over ever faster in the digital age and we have no idea to what purposes DNA might henceforth be applied.

These arguments are compelling to conservatives when we consider that the history of overreach by the Obama administration makes plain the real danger of executive tyranny. We know from recent news accounts, for example, that the IRS has recently equipped itself with multimillion dollar data collecting and crunching computer power which tells the IRS hundreds of facts about millions of Americans which the IRS can use to profile a lifestyle. For example, does the taxpayer have an interest in horse racing? If so, his tax returns might be culled for audit, an audit in which the taxpayer himself bears the burden of proving his own innocence while styled as a "devotee of the Sport of Kings." We learn that there is no legislative or even executive control (in the case of the Obama administration that is a good thing) over the collection and use of these data.

It is now established fact that the IRS has violated the law and misapplied the tax code against conservatives. We also learn that, in addition to accumulating data about the lifestyle of Americans culled from our charge cards and our Google browsing, the very same IRS is to be handed enforcement powers in Obamacare and now, presumably, the IRS will be collecting data about our most intimate bodily functions and conditions. It is of little comfort to know that we are to be protected against leakage of our private and intimate data by "firewalls." Firewalls failed to protect The Tea Party. My view is that it is inevitable that the pythons which were supposed to be confined to captivity will inevitably find their way into the Everglades and once there they will hunt.

I think that is Justice Scalia's view as well. As a conservative with a pesky libertarian streak, I am alarmed at the prospect of the government in possession of all these data. But as a constitutional conservative I must pause, even as I think Justice Scalia finds himself in a bit of an ideological twist. Where does the fourth amendment say that the judicial branch shall consider the propriety of the government's databanks in the abstract? The Bill of Rights came along with the adoption of the Constitution in 1789 and none of this, not DNA, not the computer age, not the spreading tentacles of the federal Leviathan could have been anticipated by our founding fathers. They envisioned the courts would rule on cases and controversies. In the fourth amendment realm, even conceding that they anticipated John Marshall and the assertion by the Supreme Court that they could determine the constitutionality of acts of Congress and acts of the executive, did they really believe that the court would, in effect, preemptively strike to set limits on the kind of data the government could acquire and do so in a criminal case involving some cops and a criminal?

Are we really ready to pass this legislative power to our courts? It is one thing to rule on the constitutionality of a matter before the court as a case or controversy and quite another indirectly to shape vast areas of policy by judicial fiat. All his judicial career Scalia has applied judicial restraint and sought to conform his rulings to an original interpretation of the Constitution. His reasoning here, while persuasive, does seem to be a departure from his reluctance to substitute his own judgment for Congressional or state policy where original intent does not intrude.

I am really saying the Justice Scalia doesn't like the threat of the government Leviathan perched on that cloud. I share his view but I also share his long-standing view of the limitations on the scope judicial review. The court is not constitutionally invested with the power to make policy, is responsible to rule on cases. Justice Scalia would preempt the power of the government to get a hold of this data and in doing so he would set policy. So be it. I predict that when the pythons get into the Everglades, Justice Scalia's dissent will become the majority view.

Will it be too late?

[Balding_Eagle]

It’s disappointing how many Freepers aren’t able to see police state tactics at a glance, as was the case with this stop.

The danger posed by a drug dealer gone free is but a smidgen when compared to the danger posed by government officials given free rein to stop anyone at a whim.

Seems there is something our Founding Fathers wrote about such tactics..............

Patriotic Americans should see the unconstitutionality of this case in two beats of their hearts.

A lot of learning is needed, even among posters to FR,

[Beagle8U]

“Because a police officer can’t just pull up behind you at a traffic light and think, I want to see who this ugly guy is and where he lives so I will run his plate thru NCIC. Do police officers do this? YES. Is it legal, NO.”

What if the cop is checking for improper plates or warrants?

Is it illegal to then act on the information?

[MortMan]

Your basic point of view is that if an issue (like the color mismatch) COULD be caused by wrongdoing, the cops should assume it was and conduct the investigative stop.

That does not comport with the presumption of innocence. Basically, you have to prove to the cop you didn’t do anything wrong, as opposed to them assuming you did.

I do NOT want the police acting like the IRS, frankly.

[Beagle8U]

“I can only see that in the case of data points that cannot be changed easily by the owner.

One cannot change the make or model of their car. They can however run down to the store and grab some paint and change the color.”

It is easier yet to switch plates on a stolen vehicle.

[Hulka]

Interesting.

What if the license comes back to a SUV and the plate is on a Volt? Can he be stopped then?

Stopping someone for driving a car that is “ocean blue” when it is listed as “teal”. . .that would be a stretch, but what if the registration says ‘red’ and the car is dark blue? Why wouldn’t that be considered odd or suspicious?

Stolen plates are a major business, with most people not noticing their missing front plate. What about someone swapping plates with the other car he owns, just paying for a single registration (I have seen that years back).

A plate doesn’t match the car and that is to be ignored?

That would be an indication of something, even to the most causal observer.

The drug bust part is a separate issue. Consent to search would be required or it is in plain sight or the smell is obvious and over-powering and then a warrant is required.

[Hulka]

Well stated.

Agree.

[Hulka]

What would be probable cause?

Steal a car. . .no worries after that, just drive safe and you will never be caught. Ever. Unless you are involved in an accident or the original owner (victim) sees his stolen car.

[KEVLAR]

Based on recent events, I would take all their tools.

Their job is not to harass every citizen looking for possible infractions of an ever growing set of laws, most of which do not deal with crimes against others, but rather crimes against the state.

[Beagle8U]

“Your basic point of view is that if an issue (like the color mismatch) COULD be caused by wrongdoing, the cops should assume it was and conduct the investigative stop.”

There is two sides to that coin.

Would you want a criminal to switch your plate, ( you likely would never know unless you were stopped) and then commit a crime that pointed back at you?

That could cause you far more problems than a traffic stop to check a non matching plate.

Had the guy not been found with drugs in this routine stop, the cop would have told him to notify the DMV about the color change and sent him on his way.

I would much rather have that than someone driving with my plate.